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Thursday, March 15, 2007

Better Safe than Sorry

As we have previouslyreported, the Supreme Court has granted cert on a strikingly low number of cases this term (especially surprising given Chief Justice Roberts’ promises to increase the docket). An article in the ABA Journal this month suggests that one reason the Court is not taking many cases is that law clerks, who perform initial review of cert petitions, do not want to look foolish in front of the justices and other clerks. Far greater stigma would attach if a clerk recommended cert on a case that the justices later dismissed as improperly granted (or DIGed) than if a clerk recommended denying cert and the justices disagreed and granted it. As a result, clerks are very reluctant to recommend that the Court grant cert on any given case.

And the current use of the cert pool has further lowered the numbers. The cert pool allows the justices to pool clerks so that only one clerk reads each petition, rather than each justice’s clerk reading every petition. Justice Stevens is the only justice who doesn’t participate. “I’m convinced that when each of the justices had his or her clerks read the cert petitions, you had nine sets of eyes,” says law professor Erwin Chemerinsky of Duke University. “Now you only have one set of eyes, and that really decreases the likelihood of cert being granted.”

Professor David Stras from the University of Minnesota has researched and written a law review article on this phenomenon, reviewing every cert pool memo from the 1984, 1985, 1991 and 1992 terms. “One of the things that the data did show was that consistently from term to term, the cert pool is stingier in the number of grants it recommends than the court itself,” Stras said. “The court ends up taking more cases than the cert pool recommends.”

Thus the justices ultimately vote to grant cert in some cases not recommended by their clerks. However, some important cases undoubtedly pass them by, as, according to Stras “some justices, including the late Chief Justice [William H.] Rehnquist, have admitted that they do not look at every petition for certiorari that is filed with the court.”

And so, with some justices not monitoring the process closely, the clerks end up effectively making many decisions on cert petitions. And, as the ABA Journal article made clear: “It’s better, some former clerks say, to be seen as someone who rarely if ever, recommends that cert petitions be granted.” Indeed, former Clerk for Justice Thomas and University of Virginia Law professor Stephen Smith observed, “I think clerks there actually did pride themselves on having never recommended review.”

Ahh, a job where the less you do, the more you’re appreciated. No wonder Supreme Court clerkships are so coveted.